GREENE v. STICKMAN

THOMAS GREENE, Petitioner,
v.
WILLIAM STICKMAN, Superintendent, THE DISTRICT ATTORNEY OF THE COUNTY OF BUCKS COUNTY, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA Respondents

The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge

OPINION

This matter is before the court on the Petition for Writ of Habeas
Corpus by a Person in State Custody filed by petitioner Thomas Greene on
December 18, 2002.*fn1 It is also before the court on Petitioner's
Objections to Report and Recommendation Filed by Magistrate Judge
Caracappa, which
Page 2
objections were filed August 13, 2003. For the reasons expressed
below, we overrule petitioner's objections to United States Magistrate
Judge Linda K. Caracappa's Report and Recommendation and approve and
adopt that Report and Recommendation. Furthermore, we deny the petition
for habeas corpus and decline to issue a certificate of appealability.

Procedural History

The within civil action was initiated by Mr. Greene's petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. It is before the court
on federal question jurisdiction. See 28 U.S.C. § 1331,
2254. Venue is appropriate because plaintiff was tried and convicted in
Bucks County, Pennsylvania. See 28 U.S.C. § 118, 1391,
2241. The petition was filed on December 18, 2002.*fn2

On January 6, 2003 the undersigned referred this matter to Magistrate
Judge Caracappa for a Report and Recommendation. Magistrate Judge
Caracappa's Report and Recommendation was filed July 31, 2003. On August
13, 2003 Petitioner's Objections to Report and Recommendation Filed by
Magistrate Judge Caracappa was filed. The Respondent's Answer to
Petitioner's Objections to Report and Recommendation Filed by Magistrate
Judge Caracappa was filed August 27, 2003.
Page 3

State Court Proceedings

On July 25, 1990 Thomas Greene was arrested and charged with murder of
the first degree, robbery, conspiracy, and related offenses in regard to
the murder of Michael Bannon. On October 4, 1990 the Commonwealth served
notice that it intended to seek the death penalty. On the date set for
trial, January 28, 1991, petitioner entered an open guilty plea to all
charges before Judge William Hart Rufe III, of the Court of Common Pleas
of Bucks County, Pennsylvania. On January 29, 1991 Judge Rufe sentenced
Mr. Green to life imprisonment with a consecutive sentence of
incarceration for not less than 150, nor more than 300, months.

Petitioner filed a motion for reconsideration of sentence on February
15, 1991. On March 8, 1991 following a hearing on the motion, Judge Rufe
denied the motion. No direct appeal was filed.

On July 8, 1993 petitioner filed his first petition under
Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9551. On April 19, 2000 court-appointed PCRA counsel Brian K. Wiley
filed a supplemental motion for post conviction relief. A hearing on this
petition was held April 24, 2000. Senior Judge Ward F. Clark denied the
petition on July 13, 2000.

Petitioner then filed a pro se notice of appeal in the state court. On
February 1, 2001 the Superior Court of
Page 4
Pennsylvania remanded the appeal for the appointment of counsel and
for briefing by that counsel. The PCRA court appointed Neil C. Erikson,
Esquire as defense counsel on March 26, 2003. By Order and Opinion dated
September 11, 2001, the Superior Court treated petitioner's appeal as a
direct appeal nunc pro tunc and denied petitioner's appeal.

On May 7, 2002 the Supreme Court of Pennsylvania denied Mr. Greene's
petition for allowance of appeal.

The following issues were raised by petitioner before the state courts
on appeal on collateral review in his Motion for Post Conviction
Collateral Relief filed July 8, 1993:

(A) COUNSEL RENDERED INEFFECTIVE ASSISTANCE
TO PETITIONER FOR THE FOLLOWING REASONS:

1. Counsel was ineffective for not objecting to
the defective Guilty Plea Colloguy
[sic] administered by the Court,
which failed to advise the Petitioner whithin
[sic] the explaining of the possible ranges of
sentencing that the possibility of the
sentences imposed would/could be imposed
consecutive as opposed to concurrently upon the
acceptance of the Guilty Plea. U.S.C.A. CONST.
AMEND. #6, and Pa. R. C. P.; R. 319,
42 Pa. C.S.A.

2. Counsel was ineffective for not objecting to
the Court's defective Guilty Plea
Colloguy [sic] where the court
omitted advising the Petitioner in the
Colloguy [sic], that he may withdraw
his plea before a verdict is rendered, and/or
after sentencing . . . in violation of
Petitioners Due Process. Pa. R.C. P.; R.
319 Pa. 42 C.S.A.; Const. 6th, 14 Amendments.
Page 5

3. Counsel was ineffective for inducing
Petitioner's plea of Guilty for the
removal of the Death Sentence, omitting the
entire Guilty Plea format. Pa. R.C.P.; R.
319.

4. Counsel was ineffective for not advising
Petitioner of the defective Jury Waiver
Colloguy [sic] administered by the Court
omitting the fact within the colloguy
[sic] that Petitioner may at anytime
withdraw his Waiver of jury prior to the
commencement of trial, or before the verdict is
rendered . . . violating Petitioner's Due
Process and Constitutional Rights. Pa. R. C. P.;
R. 1102(b) 42 Pa. C.S.A., Const. 6th, 5th, and
14th Amendments.

1. Trial Court errored [sic] in its Jury
Waiver Colloguy [sic] by not advising
petitioner that anytime he may withdraw
his jury waiver prior to the verdict being
rendered, or upon the discretion of the
Court . . . in violation of petitioner's Due
Process Right's [sic] to a fair
trial. Pa. R.C.P.; R. 1102(b).

2. Trial Court erred in its Guilty Plea
Colloguy [sic], where it omitted the
fact that Petitioner could withdraw this plea
after sentencing under Pa.R. 321, in violation
of petitioner's Due Process Rights and
Constitutional Rights.

3. Court erred by not advising petitioner of the
possible sentences that could be imposed
consecutive as opposed to concurrently, at
the time that Petitioner entered his Plea of
Guilty, which rendered the Plea invalid and
defective. Pa. R. C. P.; R. 319,
Pa. C.S.A.;
Page 6
6th Amend. Const.

4. Trial Court erred with the acceptance of its
Guilty Plea where nothing within the
Colloguy [sic] stated that Petitioner
was advised of the rights he was waiving as
stated in the Guilty Plea Colloguy [sic],
or the written colloguy [sic].
U.S.C.A. CONSTITUTION AMENDMENT 6,
14.

5. Trial Court erred in its omittance
[sic] after petitioner's
Reconsideration/Modification Hearing of
advising him of Appellate Rights to withdrawing
his Guilty Plea within ten(10) days after
sentencing; in violation of his Due Process and
Constitutional Rights of his 6th, 14th, Amend.,
Pa. R. C. P. R. 321; Pa. R. A. P.;
1701.*fn3

(Emphasis in original.)

Discussion

In Mr. Greene's petition, he asserts ten grounds in support of his
request for the court to grant a writ of habeas corpus. They are as
follows:

1. trial counsel failed to pursue a direct appeal
from the judgment of sentence as requested by
Greene;

2. trial counsel failed to withdraw his guilty
plea as requested by the petitioner;

3. PCRA counsel was ineffective for failing to
raise his assertion that trial counsel was
ineffective for failing to withdraw his plea
Page 7
and file a direct appeal;

4. trial counsel failed to advise him regarding
the possible defense of voluntary intoxication
and/or diminished capacity to the charge of
murder in the first degree;

5. trial counsel failed to subpoena and interview
other witnesses [Rusty Coles and Curtis Gratz]
during the hearing for reconsideration of
sentence;

6. trial counsel failed to compel the trial Judge
to conduct a penetrating and comprehensive
examination on the record assuring that
Petitioner's guilty plea was knowing and
intelligently entered;

7. trial counsel failed to petition the court for
a copy of the colloquy to show that the Court
failed to read Petitioner the required six
questions pursuant to Pa.R.Grim. P. 319;

8. trial counsel failed to argue that Petitioner
was actually innocent of first degree murder;

9. trial counsel failed to argue that petitioner
was actually innocent of robbery;

10. trial counsel failed to argue that the
cumulative errors of counsel ineffectiveness
was the catalyst that induced Petitioner to
plead guilty to charges he did not
commit.*fn4

Magistrate Judge Caracappa found that petitioner's Claims 6 through 10
are unexhausted in state court. Consequently, Magistrate Judge Caracappa
concluded that 6 through 10 are procedurally defaulted and not subject to
review. Magistrate Judge Caracappa further concluded that Claims
I through 5 are exhausted and ripe for our consideration.
Page 8

Federal law requires the exhaustion of claims in state court before
they can be considered in a federal habeas corpus action. In Evans
v. Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir. 1992), the
United States Court of Appeals for the Third Circuit concluded that it
was "well-established" that "absent a valid excuse, a prisoner must first
present all federal claims to the state court." The exhaustion
requirement recognizes the dual sovereignty inherent in our federal
system of government. Accordingly, the exhaustion requirement
appropriately gives state courts the first opportunity to correct any
errors which may have been committed by a state trial court. 959 F.2d at
1230.

In order for a claim to be exhausted, petitioner "must demonstrate that
he has presented the legal theory and supporting facts asserted in the
federal habeas petition in such a manner that the claims raised in the
state courts are `substantially equivalent' to those asserted in federal
court." Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996).

Claims 6 through 10

In Claims 6, 7 and 10, petitioner asserts that trial counsel was
ineffective for not objecting to the trial court's allegedly defective
guilty plea colloquy and for inducing the guilty plea. These Claims were
not presented to the state courts. A comparison of the lists above
reveals that Claims 7 and 10 were not raised during petitioner's state
appeals. A
Page 9
careful examination reveals that Claim 6 also was not raised.

In Claim 6, petitioner accuses trial counsel of being ineffective for
failing to compel the trial judge to ensure that petitioner's guilty plea
was knowing and voluntary. Petitioner did not raise the issue of a
knowing and voluntary guilty plea before the state court. Petitioner did
assert that the trial counsel was ineffective for failing to ensure that
the trial court informed petitioner of his right to withdraw his guilty
plea, but counsel's alleged failure to inform petitioner that he could
withdraw his plea is factually and legally distinguishable from an
allegation that petitioner's guilty plea was not the product of a knowing
and intelligent decision.

Petitioner raises two distinct arguments, one challenging the guilty
plea colloquy procedurally and one challenging it substantively. In the
state court, petitioner asserted that the colloquy was defective because
petitioner was not informed of his right to withdraw his plea. This is a
procedural error.

The argument presented herein challenges the voluntariness of the plea.
This is a substantive challenge. Because the state court was never given
the opportunity to determine whether petitioner's guilty plea was the
result of a knowing and voluntary decision, this Claim is procedurally
Page 10
defaulted.*fn5

Claims 8 and 9 are also procedurally defaulted. It appears that
petitioner asserts that his PCRA contention that trial counsel was
ineffective for failing to inform petitioner of the defenses of voluntary
intoxication and diminished capacity (see Claim 4) is, in fact,
a claim of actual innocence. In other words, petitioner is
apparently contending that he is innocent of murder in the first degree
and robbery because he was incapable of forming the requisite intent to
commit either crime by virtue of his voluntary intoxication.

But petitioner errs in his analysis. The analysis for ineffective
assistance of counsel differs from that of actual innocence. Ineffective
assistance of counsel mandates a Sixth Amendment analysis. The Sixth
Amendment to the United States Constitution is applicable to the states
through the Due Process Clause of Fourteenth Amendment. See Gideon
v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
Page 11

An actual innocence argument must be based upon the Fourteenth
Amendment's Due Process clause. See In re Winship,
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Under an actual innocence
argument, petitioner must show by a preponderance of the evidence that no
reasonable jury would have convicted him. Schlup v. Delo,
513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808, 836. Because the two
analyses differ, petitioner has not presented his actual innocence
arguments to the Pennsylvania state courts. Accordingly, petitioner's
Claims of actual innocence are procedurally defaulted.*fn6

Moreover, plaintiff has adduced no evidence to support his assertion
that he is actually innocent of the offenses with which he has been
convicted. Rather, it appears that petitioner relies upon a legal
argument concerning his innocence.

Petitioner's claim of actual innocence is based upon his contention
that because he was inebriated at the time of the offenses, he was
incapable of forming the specific intent to commit murder of the first
degree or robbery.*fn7 Thus, petitioner
Page 12
does not dispute that he committed murder, but merely disputes what
kind of murder he committed.*fn8

According to defendants' Answer to Petition for Habeas Corpus Relief
and Memorandum of Law in Support Thereof, the facts (which petitioner
does not dispute) are as follows:

On Thursday 19, 1990, the deceased, Michael
Bannon, age 32, arrived at the Bristol House
Tavern in Bristol Brough, Bucks County,
Pennsylvania, between 11:00 and 11:30 p.m. He was
at the bar and quietly conversed with the
bartender for approximately forty-five minutes.
During the early morning hours of Friday, July 20,
1990, Petitioner arrived at the bar with a friend,
Jason McCausland. Petitioner sat down at the bar
near the victim. As he did so, the victim, who had
money on the bar, moved the money over in front of
him. Petitioner, annoyed that Bannon had moved the
money, told the victim that he did not have to
move his money.

Petitioner, co-conspirator Jeffery Lafferty and
another individual eventually left the bar
together with the victim. The victim was acting
under the impression that the men were going
fishing. Bannon walked with Petitioner and his
friends to the Delaware River in Bristol Borough.
Upon their arrival, Petitioner and Jeffery
Lafferty attacked the victim. The victim was
beaten and stabbed by Petitioner and thrown in to
the river with the assistance of Lafferty.

Minutes after leaving the area of the
attack, Petitioner returned for his beer and found
the victim staggering, soaking wet, on Radcliffe
Street after apparently climbing out of the river.
Petitioner approached the victim and attacked him
again, slicing his throat.
Page 13

Shortly after 3:00 a.m. on Friday, July
20, 1990, the body of Michael Bannon was found
lying face down on Radcliffe Street by the Bristol
Borough Police. The victim's clothes were wet and
his jeans pockets were turned inside out. The body
had visible stab wounds to the neck, chest and
both sides of the abdomen. A trail of blood ran
from the area where the body was located across
the street and down to the river bulkhead. Three
of the areas of heavy concentrations of blood were
found near the river and were comparable in the
amount to the blood found near the body.

The autopsy performed on the body of Michael
Bannon revealed thirty (30) external injuries. The
injuries included scrapes to the face and fifteen
stab wounds to the body including the neck, chest,
and both sides of the abdomen, finger, pelvis and
thigh. The victim died as a result of stab wounds
to the neck aorta, lungs and liver.*fn9

We will disturb a state court ruling only when the state court
decision: "(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362,
120 S.Ct. 1495, 146 L.Ed.2d 369 (2000).

Petitioner has offered no explanation of how his conviction for murder
of the first degree is "contrary to, or an unreasonable application of,
clearly established federal law" or
Page 14
unwarranted under the facts presented. 28 U.S.C. § 2254(d).
Moreover, we can not find any error in the state court's result.
Accordingly, we find no merit to petitioner's contention that he is
actually innocent.

Thus, petitioner's Claims I through 5 remain. We apply the
standard from Section 2254(d) to these Claims.

Claim 1

Petitioner contends that trial counsel was ineffective for failing to
file a direct appeal from his sentencing. In order to establish an
ineffective assistance of counsel claim, petitioner must establish that
(1) counsel's performance "fell below an objective standard of
reasonableness" and (2) that petitioner was prejudiced as a result.
Stickland v. Washington, 466 U.S. 668, 687-692, 104
S.Ct. 2052, 2064-2067, 80 L.Ed.2d 674, 693-696 (1984).

Without evaluating counsel's performance, we determine that petitioner
suffered no harm from the failure to file a direct appeal. The Superior
Court of Pennsylvania converted petitioner's PCRA appeal to a direct
appeal nunc pro tunc. Thereafter, the Superior Court denied petitioner's
appeal on the merits. The petitioner has cited no law that established
that the Superior Court violated clearly established federal law by
treating petitioner's PCRA claims as a direct appeal and our own research
reveals none. Accordingly, we find that petitioner
Page 15
suffered no harm from trial counsel's failure to file a direct
appeal from sentence.*fn10

Claim 2

In Claim 2, petitioner argues that trial counsel was ineffective for
failing to withdraw his guilty plea as requested by petitioner. Because
petitioner has failed to show any prejudice that resulted from trial
counsel's alleged ineffectiveness, we conclude that this claim is without
merit.

It appears that petitioner wanted to withdraw his guilty plea because
the trial court imposed four consecutive sentences on the four charges
upon which petitioner was convicted. Petitioner apparently had hoped for
concurrent sentences. "A `misplaced hope for a lighter sentence is not
ground for withdrawl of a plea'" in Pennsylvania. Rather, Pennsylvania
requires only that guilty pleas be made knowingly, intelligently, and
voluntarily. Commonwealth v. Martin, 416 Pa.Super. 507, 512,
611 A.2d 731, 733 (1992).

Petitioner does not explain how the application of
Page 16
Pennsylvania law to his case violated clearly established federal
law. Petitioner argues that if he had know that the trial court would
impose consecutive sentences then he would have taken his chances at
trial. This is not grounds to withdraw a guilty plea. Martin,
supra. Accordingly, we find that Claim 2 is without merit.

Claim 3

In Claim 3, petitioner contends that PCRA counsel was ineffective for
failing to raise his assertion that trial counsel was ineffective for
failing to withdraw his plea and file a direct appeal. The Superior Court
agreed with petitioner, and, as a result, considered this contention on
its merits.

As a remedy for counsel's failure to file a direct appeal, the Superior
Court granted petitioner's appeal as a direct appeal nunc pro tunc. The
Superior Court then determined that petitioner's contention that trial
counsel was ineffective because of the failure to withdraw the guilty
plea was without merit. For the reasons expressed in our discussion of
Claims 1 and 2 above, we also find that Claim 3 is without merit.*fn11
Page 17

Claim 4

Petitioner asserts in Claim 4 that trial counsel was ineffective for
failing to advise petitioner of the availability of the defenses of
voluntary intoxication and diminished capacity to the charge of murder of
the first degree.

The PCRA court took testimony regarding this issue on April 24, 2000.
At that hearing petitioner's trial counsel, Gregg Blender, Esquire,
testified that he had met with petitioner over 25 times.
Commonwealth v. Greene, No. 90-5079, 90-5080, at 29 (C.C.P.
Bucks April 24, 2000). Attorney Blender testified that voluntary
intoxication and diminished capacity were the only defenses that he found
applicable, and that he discussed them numerous times with the
petitioner. Id. at 30, 35.

In addition, Attorney Blender testified that he had investigated these
defenses and was prepared to go to trial upon those defenses on the day
that petitioner decided to change his plea to guilty. Id. at
35-36. Senior Judge Ward F. Clark, who presided over the PCRA court,
found Gregg Blender to be a credible witness and accepted his testimony.
Commonwealth v. Greene, No. 90-5079, 90-5080, at 2 (C.C.P.
Bucks July 14, 2000).

We will not disturb the state court's credibility determinations
without compelling justification. State court decisions and the reasons
that support their decisions are
Page 18
entitled to substantial deference. See Williams, 529 U.S.
at 386, 120 S.Ct. at 1509, 146 L.Ed.2d at 414. Accordingly, we find no
factual basis for Claim 4 and, therefore, conclude that it is without
merit.

Claim 5

In Claim 5, petitioner contends that trial counsel was ineffective for
failing to subpoena and interview witnesses during the hearing for
reconsideration of sentence. In particular, petitioner asserts that trial
counsel should have subpoenaed and interviewed Rusty Coles and Curtis
Gratz.

During the April 24, 2000 hearing, Senior Judge Clark also took
testimony on this issue. During the hearing, petitioner admitted that he
had not given trial counsel Mr. Coles' or Mr. Gratz's name prior to the
motion for reconsideration hearing. Commonwealth v. Greene, No.
90-5079, 90-5080, at 22 (April 24, 2000).

[I]n the context of a claim of failure to call
witnesses [petitioner] must . . . prove: (1) the
existence and availability of the witnesses; (2)
counsel's awareness of, or duty to know of the
witnesses; (3) the witnesses' willingness and
ability to cooperate and appear on behalf of the
[petitioner]; and (4) the necessity of the
Page 19
proposed testimony in order to avoid
prejudice.

Petitioner admitted that he did not tell counsel of the existence
of either Mr. Coles or Mr. Gratz. Accordingly, petitioner cannot satisfy
the second factor of the Williams test.

Moreover, plaintiff cannot establish that prejudice resulted from the
failure of either witness to testify. Mr. Greene's counsel carefully
prepared a defense based upon voluntary intoxication and diminished
capacity and was prepared to go to trial with these defenses on the day
that Mr. Greene decided to plead guilty. In the preparation of those
defenses, counsel had interviewed and prepared experts, Mr. Greene's
friends and neighbors, and even one of Mr. Greene's bartenders.
Petitioner does not assert anything to which Mr. Coles or Mr. Gratz could
have testified that was not already covered in the preparation of these
other witnesses. Accordingly, petitioner cannot establish the fourth
element of the Williams test.

Finally, petitioner does not assert the Pennsylvania standard for
determining whether counsel was ineffective for failing to call a witness
violates clearly established federal law. Moreover, we find no support
for such a position. Accordingly, we find Claim 5 without merit.

Certificate of Appealability

A certificate of appealability should be issued if petitioner
demonstrates that "jurists of reason could disagree
Page 20
with the district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1035,
154 L.Ed.2d 931, 944 (2003). Petitioner presents neither any issue upon which
reasonable jurists could debate nor an argument which deserves
encouragement to proceed.

Petitioner has not presented any novel issues of fact or law. All of
petitioner's Claims are resolved by procedural default, by clearly
established Pennsylvania law, or by the absence of any factual support.
Petitioner does not aver, and we can find no support for the averment,
that any of the clearly established Pennsylvania law cited herein, or by
the defense, violates clearly established federal law. Accordingly, we
decline to issue a certificate of appealability.

Conclusion

For the foregoing reasons, we approve and adopt Magistrate Judge
Caracappa's Report and Recommendation. Furthermore, we deny the Petition
for Writ of Habeas Corpus by a Person in State Custody and decline to
issue a certificate of appealability.
Page 21

[EDITORS NOTE: THIS PAGE IS BLANK]
Page 22

ORDER

NOW, this 29th day of March, 2004, upon consideration of the Petition
for Writ of Habeas Corpus by a Person in State Custody filed by
petitioner Thomas Greene on December 18, 2002; upon consideration of the
Brief in Support of Habeas Corpus Petition filed by petitioner on
December 18, 2002; upon consideration of the Answer to Petition for
Habeas Corpus Relief and Memorandum of Law in Support Thereof filed by
respondents on March 24, 2003; upon consideration of the Report and
Recommendation of Magistrate Judge Linda K. Caracappa filed on July 31,
2003; upon consideration of Petitioner's Objections to Report and
Recommendation Filed by Magistrate Judge Caracappa filed August 13, 2003;
upon consideration of Respondent's Answer to Petitioner's Objections to
Report and Recommendation Filed by
Page 23
Magistrate Judge Caracappa filed August 27, 2003; upon
consideration of the record papers; upon consideration of the decisions
of the Pennsylvania courts that ruled upon petitioner's motions before
the state courts; it appearing that Magistrate Judge Caracappa's Report
and Recommendation correctly determined the legal issues presented in
this action; and for the reasons expressed in the accompanying Opinion,

IT IS ORDERED that the Report and Recommendation is approved
and adopted.

IT IS FURTHER ORDERED that petitioner's Petition for Writ of
Habeas Corpus by a Person in State Custody is denied.

IT IS FURTHER ORDERED that petitioner's objections are
overruled.

IT IS FURTHER ORDERED that no probable cause exists to issue
a certificate of appealability.

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